Friday, August 29, 2014

The California legislature has passed SB-967 Student safety: sexual assault, the infamous "affirmative consent" bill. This has prompted a national conversation about "consent" and sexual assault, but it seems nobody writing about it has the first idea what they are talking about. I don't say that lightly.

The question is, what evidence of "consent" is necessary to satisfy California's new law? The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. I don't know about other lawyers in the audience, but if I'm challenging the constitutionality of this law, I am going to cite that statement.

The law is not a guessing game. A statute proscribing conduct is supposed to put the public on clear notice as to the conduct that is forbidden. William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague. Laws governing sex can't be free-floating standards of purported wrongdoing and should never punish criminality “in the air.”

Cue feminist writer Tara Culp-Ressler, who has written perhaps the most asinine piece on the subject of consent I've ever seen. She chides critics of California's "affirmative consent" law who are concerned about what constitutes legal consent under the law. She essentially tells them that it doesn't matter: so long as the woman is happy, she won't accuse you of rape. Here is what she wrote:

The people who are worried about affirmative consent standards are typically preoccupied about the people who may be penalized for failing to ask questions every step of the way. What if a college student starts passionately kissing his girlfriend without getting her permission first? What if a couple enjoys explicitly consensual foreplay and then moves on to intercourse without a verbal agreement beforehand?

But those hypothetical situations aren’t necessarily breaches of an affirmative consent standard. If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later. So if college students are worried about protecting themselves from being penalized, it’s not hard — all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time.

Wrong, Culp-Ressler.

"Consent" is an agreement, free of duress, that is evidenced by a party's outward manifestations. It's not enough to say "you're safe if the woman is subjectively happy." A trier of fact must be able to examine evidence of alleged assent at the time of the act to determine if a reasonable person in the position of the person seeking consent would have understood that the other party consented. If that sentence is too complicated for you, read it again, and again, and again until you understand it, because that's the law, and it's the only test that works.

Whether the woman is subjectively happy or subjectively unhappy is not pertinent if her subjective state did not coincide with her outward expressions. The only question that matters is whether her outward manifestations of assent indicated to the man that she assented to the sex act. Period. And historically, consent can be manifested in an infinite number of ways.

Since no one can seem to say what evidence of "consent" will suffice under this strange new law, let's hope it is challenged in court very soon and ruled unconstitutionally vague.

The California legislature has passed SB-967 Student safety: sexual assault, the infamous "affirmative consent" bill. Now California has a criminal statute that regulates sexual assault in society at large and it will soon have one that regulates sexual assault on college campuses. When Gov. Brown signs it, it will be the first statute ever enacted to define "consent" for college students. "The bill defines consent to sex as the presence of a 'yes' rather than the absence of a 'no,' a cultural shift that victim’s groups have long advocated." See here. The law will codify the use of the low “preponderance of the evidence” standard (50.01% likelihood) in campus sexual assault cases and mandate “affirmative consent” at every step of a sexual encounter.

There are a host of problems with the new law. The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. Will it be implemented along the lines of Antioch College's infamously absurd sexual assault policy, so nutty that it was mocked in a Saturday Night Live skit? For those who don't remember Antioch's policy: "The persons(s) who initiate[d] the sexual activity [was] responsible for asking for consent." And: "Each new level of sexual activity requires consent." The Antioch policy was rightly skewered for the part about "each new level of sexual activity requir[ing] consent." Is it a stretch to think that young men who got consent for intercourse at the outset will be expelled for not asking whether it's okay to continue if it has gone on for "too long"?

California college men take heed: it is the responsibility of both parties to insure consent

But the other part of the Antioch policy quoted above -- it was the responsibility of the "initiator" to insure consent -- was also very problematic. Determining who is the "initiator" is often no easy task in the horny, murky world of college sex, but in a culture where males are assumed to be the initiators of sexual activity and females are assumed to be reticent about engaging in sex, it is not difficult to imagine which party usually will be singled out as the "initiator." Putting the onus on the "initiator" alone to insure that consent exists for the entire endeavor was code for "policing male behavior."

When the new California bill was first introduced last February, it contained a similar, onerous requirement:

An affirmative consent standard in the determination of whether consent was given by a complainant. . . . . It is the responsibility of the person who wants to engage in the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity.

But when the bill got to the state Assembly, it was changed, and the bill that just passed and that is heading to the governor for signature makes clear that the responsibility for insuring the other party consents is on both participants:

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. . . . . It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.

The language in the California bill is critically important because sex policing on campus is premised on the antiquated belief that sex is something men do and that women have done to them. Duke University Dean of Students Sue Wasiolek recently was asked what would happen if two students got drunk to the point of incapacity, and then had sex. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek. This sort of attitude can be deadly, especially in a culture where college administrators think it is perfectly fair to ask whether young men should be expelled on the basis of nothing more than an accusation.

On the basis of the revised language in the California bill, if a couple is in the throes of passion, and if the male fails to inquire if it's okay to proceed, he is no more responsible for sexual assault than the female if she fails to inquire. Any application of the new law that puts the onus solely on the male to insure that ongoing consent is present would be grounds for legal challenge -- and for the male to legitimately claim he, too, was the victim of a rape.

Even more important, if a male student, drunk or not, is not the one who escalates the activity to the next level without bothering to make sure if this is okay, he's the victim and she's a rapist. California men need to know that the burden is on the woman to insure he consents in that scenario, and we need to break down the cultural taboos for men to report their victimization. The reason we don't have a lot more men reporting they've been raped by women is because the very notion doesn't fit society's assumptions about men, women, and sex.

A few months ago, Wall Street Journal writer James Taranto wrote about sex partners who engage in mutually reckless drunken sex where both parties are intoxicated and mutually decide, in their drunken states, to have sex. Both of them engage in precisely the same conduct; the only difference is that one has a penis and one has a vagina. Mr. Taranto said it is unjust to hold only the man responsible when two drunks mutually decide to have sex. The male is every bit as much a "victim" as the female, and the female is every bit as much a "rapist" as the male. In Mr. Taranto's scenario, the parties' genders, not their conduct, is the only thing that differentiates them.

That didn't stop the usual suspects from having a conniption over Mr. Taranto's article. Tara Culp-Ressler wrote: ". . . conservative commentator James Taranto argued that a 'balanced' approach to the college sexual assault crisis involves placing equal blame on rapists and their victims, if both of them were drinking alcohol." Even though that's not what James Taranto argued. David Futrelle attacked the premise of Tatanto's scenario: "Huh," clucked Futrelle. "I'm pretty sure we determine the victim of a rape not on demographics but based on WHICH PERSON RAPED THE OTHER PERSON."

In contrast, Brett Sokolow of NCHERM thinks that in too many cases, colleges do determine the victim of a rape on the basis of demographics and not on which person raped the other. Mr. Sokolow, who has done more to advance the rights of rape survivors on campus than anyone we are aware of, cautioned colleges that when a man and a woman engage in mutually tipsy sex, the school shouldn't single out the guy for discipline, but they do. Shortly after that, Mr. Sokolow elaborated in an open-letter that raised very serious concerns about the hostility on American college campuses to the rights of men accused of sexual violence. Sokolow said that in the drunken "hook up" culture, the evidence is often too murky to warrant charging and punishing the male accused of sexual misconduct, but that's exactly what too many schools are doing. He said that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what OCR wants." And in "case-after-case . . . sincere victims believe something has happened to them that evidence shows absolutely did not . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."

College men need to know that they are being unfairly singled out for sexual assault chages (don't rely on me -- that's what Brett Sokolow said), and California college men need to know they will soon have a law that says women have a responsibility to get the guys' consent, too. And they need to use that law when they have been victimized.

Thursday, August 28, 2014

NFL Commissioner Roger Goodell's announcement yesterday that he is getting tough on domestic violence -- any NFL employee found to have engaged in assault, battery, domestic violence or sexual assault that involved physical force will be suspended without pay for six games for a first offense, banned for life for a second offense -- was hailed by women's groups as a "big win" and by progressive news outlets as "stunning in its earnestness and clarity." Even with this announcement, NFL players will still have more rights than college men accused of similar sex offenses.

You see, NFL players have a very powerful union that advocates for them. College men have nobody to speak for them.

The NFL's Personal Conduct Policy provides that personnel found in violation of a policy who appeal are entitled to a prompt hearing pursuant to Article 46 of the NFL's Collective Bargaining Agreement. According to Article 46 of the Collective Bargaining Agreement, "the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers."

This is in marked contrast to the procedure on college campuses, where there is no requirement for consultation with any group that represents the interests of presumptively innocent men accused of sexual assault. One young man accused of a sex offense recently sued his school claiming "that the university refused his request to have a student on the hearing panel, which was made up of three colleagues of the victim's father, a Vassar professor." So much for fair play, the rule of law, and the bare semblance of justice.

Wait. It gets better. The NFL rules provide: "In any hearing provided for in this Article, a player may be accompanied by counsel of his choice." (Article 46, Section 2(b).) The NFL even provides for hearings to be rescheduled to accommodate the schedules of players' lawyers. (Article 46, Section 2(i).)

This is in contrast to the practice of most colleges, which don't allow lawyers to advocate for the accused in sex offense proceedings. Lawyers are, in fact, considered a hindrance. The Department of Education does not require institutions to allow attorneys to attend disciplinary hearings even in an advisory role -- not even where the accused is subject to criminal proceedings and might waive important Constitutional rights in his college hearing.

There's more. The NFL rules provide: "The [NFL Players Association] . . . have the right to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing." (Article 46, Section 2(b).) Immediately after the new rule was announced, the Players Association sprung into action and made it clear they will participate in appropriate cases: "We were informed today of the NFL's decision to increase penalties on domestic violence offenders under the Personal Conduct Policy for all NFL employees," the NFLPA said in a written statement. "As we do in all disciplinary matters, if we believe that players' due process rights are infringed upon during the course of discipline, we will assert and defend our members' rights." One news outlet took offense to the union's statement that it will seek to uphold due process rights, saying it means that "unfortunately, . . . the players can and will fight tooth-and-nail to avoid being punished under these rules." Heaven forbid we should allow due process to intrude on punishment!

Lucky for the feminist extremists and law-and-order zanies, there is no impediment to the rush to judgment on campus. College proceedings do not allow any group advocating for the accused to participate in the hearing on behalf of the accused. That's just as well, because there are no such groups.

The NFL rules also provide for the fair exchange of discovery before the hearing: ". . . the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing."

This is in contrast to the practice of many colleges, some of which don't even bother to provide the accused with notice of charges or the names of witnesses against him. Hardly any schools (only 15%) employ formal rules of evidence in sex hearings, even though the majority of schools do abide by rape shield laws. See here.

Is it at all surprising that NFL players have far more rights than college men? Even illegal aliens have more rights than college men! Is there any group in America that stands to lose as much as college men accused of rape but that is afforded fewer rights? I can't think of one. And the most disturbing thing? Virtually nobody cares.

Friday, August 22, 2014

That a terrorist in Syria who commits a savage act in the name of a savage ideology is deserving of American due process, but American citizens accused of sex offenses who happen to be male and who happen to attend college are not, tells us all we need to know about the triumph of the most twisted political correctness imaginable.

But why are we surprised? "George Washington University law professor John Banzhaf suggests that illegal immigrants surging across the southern border into the U.S. receive more due process rights than college students accused of date rape." See here and here.

Moreover, public housing tenants have the right, under federal law, to confront and cross-examine witnesses before they can be evicted, a right the Obama administration doesn't think young men accused of sex offenses deserve before they are subjected to a potentially life-altering expulsion from college.

People who are sued for insubstantial money damages have far greater protections under the law than college men accused of sex offenses. Many who defend colleges' use of the "preponderance of the evidence" standard in sex cases insist it is fair because civil proceedings for money damages generally use that standard. What they conveniently fail to mention is that defendants in civil actions are afforded all manner of procedural protections, including the right to cross-examine plaintiffs in depositions and at trial, that are flatly denied young men in college sex proceedings.